Contents
What the proceedings were about
A works council in North Rhine-Westphalia wanted to force its employer to introduce an electronic time recording system. It relied on its codetermination right under section 87(1) no. 6 of the Works Constitution Act and applied for a conciliation board. The Hamm Regional Labour Court found in its favour.
The Federal Labour Court set that decision aside, but with reasoning the works council had not expected: there is no right of initiative, because the employer is under a statutory duty anyway. Codetermination under section 87(1) BetrVG requires that there be no statutory rule.
The order carries the file number 1 ABR 22/21 and is dated 13 September 2022. The full reasons were published on 3 December 2022.
The derivation: section 3(2) no. 1 ArbSchG
The court bases the duty not on the Working Hours Act but on the Occupational Safety and Health Act. Under section 3(2) no. 1 ArbSchG, the employer has to provide a suitable organisation and the necessary means to implement occupational safety measures.
The court interprets that provision in the light of the European Working Time Directive 2003/88/EC as understood by the European Court of Justice in its judgment of 14 May 2019 (C-55/18). From that it follows that a suitable organisation includes a system with which the working time performed can be recorded.
That construction is the reason the duty already applies today and does not first arise with an amendment to the Working Hours Act.
What the order leaves open
The court does not say how recording has to happen. It names neither an electronic form nor a particular system. Paper, a spreadsheet or software are equally possible, as long as the start, the end and the duration of daily working time are recorded.
Nor does it say who records. The recording can be delegated to the employees; responsibility for it happening and for the results being correct stays with the employer.
And it says nothing about sanctions. There is no fine provision for missing records in the Occupational Safety and Health Act. The supervisory authorities can, however, issue orders under section 22 ArbSchG, and anyone disregarding them risks a fine under section 25 ArbSchG.
What remains of the codetermination right
The right of initiative is gone, the codetermination right is not. The works council cannot force the introduction, but it codetermines as soon as it happens: which system, which data, which evaluations, which access.
The legal basis remains section 87(1) no. 6 BetrVG, because a time recording system is suitable for monitoring behaviour or performance. On top of that come section 87(1) no. 2 BetrVG for the start and end of daily working time and no. 3 for temporary extensions.
In practice that means: anyone introducing a system should involve the works council early. Not because it can demand it, but because no system goes live without an agreement or a conciliation board ruling.
- No right of initiative: the works council cannot compel the introduction.
- Codetermination over the arrangement remains fully intact.
- Without an agreement, the conciliation board decides the how.
What businesses should make of it
The duty exists regardless of the size of the business and regardless of a works council. Anyone not yet recording should start rather than wait for the amendment to the Working Hours Act; the ministerial draft provides for an exemption for businesses with up to ten employees that does not exist today.
What makes sense is a system that does not only count but also checks: maximum working time under section 3 ArbZG, breaks under section 4 ArbZG, rest periods under section 5 ArbZG. The order does not require that, but the duties from the Working Hours Act apply anyway, and a system that keeps an eye on them prevents breaches instead of merely documenting them.
This is not legal advice; for a specific case at your workplace you are better off asking someone qualified to give it.
Published by: AMNAU GmbH
Editorial responsibility: Ugur Aydogan, Product development.
Last reviewed: 2 September 2026